Edited by Tom Ginsburg and Rosalind Dixon
Chapter 33: Docket Control and the Success of Constitutional Courts
David Fontana* I INTRODUCTION In a chapter about comparative constitutional law, it might be surprising to start off this chapter with a mention of Alexander Bickel. Bickel was no doubt one of the landmark figures in American constitutional law. Writing in 1980, John Hart Ely called him ‘probably the most creative constitutional theorist of the past twenty years’.1 But exporting some of Bickel’s ideas about American constitutional law can actually inform our understandings of comparative constitutional law as well. Bickel’s observation that the power of courts to do nothing – to avoid deciding constitutional cases entirely by declining to grant certiorari and hear a case in the first place – can greatly enhance the success of these courts, is an observation that can help us understand much of the success and failure of various courts deciding constitutional cases around the world, even beyond the United States Supreme Court. This judicial power to decide not to hear a case is a power that I will reference as the power of ‘docket control’. It is not just a significant power for the United States Supreme Court, but for all courts deciding controversial constitutional cases. There are many reasons why giving courts the power of docket control can contribute to their success. Deciding what cases to decide permits a court to issue the right decisions at the right times, what this chapter calls ‘issue timing’. A court can avoid encountering an issue until the country is ready to discuss the issue, and perhaps ready to...
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